A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Five: Jury Deliberations

5.1     Communications With A Deliberating Jury
          A. In General
          B. Judge's Physical Absence During Deliberations
          C. Improper Communications
          D. Investigating Alleged Jury Misconduct

The judge should utilize procedural safeguards during communications with the jury. See United States v. Artus, 591 F.2d 526, 528 (9th Cir. 1979) (noting that defendants should have adequate opportunities to evaluate the propriety of proposed responses or instructions). Such safeguards should include the judge providing the parties with the question, hearing comments, communicating the decision, allowing an opportunity to object, and announcing an answer to the jury question before relaying that answer to the jury. All of these procedures should be on the record.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B.  Communications With A Deliberating Jury: Judge's Physical Absence During Deliberations

Trial judges are encouraged to be physically present for proceedings during jury deliberations, and their absence under many circumstances would constitute error. United States v. Arnold, 238 F.3d 1153, 1155 (9th Cir.) (replying to jury's question after telephonic conference with attorneys was not error since judge dictated a response to the question, which was delivered to the jury), cert denied, 533 U.S. 937 (2001). In addition, a substitute judge should certify, if possible, that he is familiar with the record. United States v. Lane, 708 F.2d 1394, 1396 (9th Cir. 1983).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

C.  Communications With A Deliberating Jury: Improper Communications

1. Ex Parte Communications and Contacts

The court should refrain from all communications with members of the jury outside the presence of counsel. United States v. United States Gypsum Co., 438 U.S. 422, 460-61 (1978) (holding improper an ex parte communication between the trial judge and the foreperson).

Ninth Circuit precedents "distinguish between introduction of 'extraneous evidence' to the jury, and ex parte contacts with a juror that do not include the imparting of any information that might bear on the case." Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Serv. Co., 206 F.3d 900, 906 (9th Cir.), cert denied, 531 U.S. 919 (2000). "Where ex parte contacts are involved, the defendant will receive a new trial only if the court finds 'actual prejudice' to the defendant." Id. at 906 (quoting United States v. Maree, 934 F.2d 196, 201 (9th Cir. 1991)).

"Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear." Mattox v. United States, 146 U.S. 140, 142 (1892). The Ninth Circuit has held that Mattox established a bright-line rule: "[a]ny unauthorized communication between a juror and a witness or interested party is presumptively prejudicial, but the government may overcome the presumption by making a strong contrary showing." Caliendo v. Warden of California Men's Colony, 365 F.3d 691, 696 (9th Cir.) (citations omitted), cert. denied, 125 S. Ct. 314 (2004); see also Rinker v. County of Napa, 724 F.3d 1352, 1354 (9th Cir. 1983) (applying the Mattox rule to a civil action). On the other hand, if "an unauthorized communication with a juror is de minimis, the defendant must show that the communication could have influenced the verdict before the burden of proof shifts to the prosecution." Caliendo, 365 F.3d at 696. (citations omitted). Whether an unauthorized communication between a juror and a third party concerned the case is only one factor in determining whether the communication raised a risk of influencing the verdict. Other factors may include "the length and nature of the contact, the identity and role at trial of the parties involved, evidence of actual impact on the juror, and the possibility of eliminating prejudice through a limiting instruction." Id. at 697-98.

2. Extrinsic Material During Deliberations

NCJIC 276.3.4 [Jury's Request For Exhibits Or Materials Not Admitted Into Evidence]

The jury's exposure to extrinsic material will only warrant a new trial "if there existed a reasonable possibility that the extrinsic material could have affected the verdict." United States v. Plunk, 153 F.3d 1011, 1024 (9th Cir. 1998) (quoting Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987)). Courts evaluate "five separate factors to determine the probability of prejudice: (1) whether the extrinsic material was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the jury discussed and considered it; (4) whether the extrinsic material was introduced before a verdict was reached, and if so, at what point in the deliberations it was introduced; and (5) any other matters which may bear on the issue of the reasonable possibility of whether the introduction of extrinsic material affected the verdict." Plunk, 153 F.3d at 1024-25 (internal quotation marks omitted).

See §§ 3.14 and 6.3.

3. Jury Tampering

"In a criminal case, any . . . tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial . . .."  Remmer v. United States, 347 U.S. 227, 229 (1954). See also United States v. Dutkel, 192 F.3d 893, 894-95 (9th Cir. 1999) (tampering with jury by co-defendant required reversal of conviction unless government could show no reasonable possibility existed that jury§s decision was affected).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

D.  Communications With A Deliberating Jury: Investigating Alleged Jury Misconduct 

NCJIC 16.7 [Court's Duty To Inquire Into Juror Misconduct]

1. In General

The trial judge may examine each juror concerning the circumstances of alleged misconduct. This should be done on the record in the presence of counsel and the defendant (in a criminal court, and provided an opportunity to be heard (outside of the juror's presence). When examining jurors individually, the trial judge should bear in mind that repeated questioning could itself be prejudicial in causing jurors to become curious about the subject matter of the inquiry. Each juror should be admonished not to discuss the content of such inquiries with the other jurors. Silverthorne v. United States, 400 F.2d 627, 640-41 (9th Cir. 1968). See also Smith v. Phillips, 455 U.S. 209, 216-17 (1982).

2. Necessity for Evidentiary Hearing

"An evidentiary hearing is not mandated every time there is an allegation of jury misconduct or bias. Rather, in determining whether a hearing must be held, the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source." United States v. Angulo, 4 F.3d 843, 847 (9th Cir. 1993) (internal citations omitted). See also United States v. Hanley, 190 F.3d 1017, 1030 (9th Cir. 1999) (finding no error where district court refused to conduct evidentiary hearing on juror bias).